Mary Nyaboke Magerere v Chembe Merchant Limited & 1 other

3. Prayer (2) above is clearly misconceived as it is a substantive prayer that can only be considered in the main Appeal, should prayer (3), leave to appeal, be granted. 4. The Application is then supported by the Affidavit sworn by the Applicant in which she deponed that she filed the suit at the Small Claims Court about 11/10/2023 and served the Respondent who however did not enter appearance and default Judgment was therefore entered in the Applicant’s favour on 30/10/2023. She deponed that in the cause of executing the Judgment, the Respondents filed an Application sometime in February 2024 seeking to set aside the ex parte Judgment, which Application was however only served upon the Applicant 2 days before the hearing thereof, and which Application the trial Court allowed on 7/03/2024. According to her, the Ruling has adversely affected hence her filing of the instant Application. She conceded that this Court had brought to her Counsel’s attention the defective nature of prayer (2) above as aforesaid. She then pointed out some alleged errors in the trial Court’s Ruling. She also deponed that having served the Respondents but who refused to participate in the primary suit, their lying that they were not served is the height of insincerity. 5. In opposing the Application, the Respondent, through Messrs Lusinde Khayo & Co. Advocates filed the Replying Affidavit sworn on 18/03/2025 by Advocate Abigael Lusinde Khayo, Counsel for the Respondents. She maintained the position that the Applicant filed and proceeded with the primary suit before the Small Claims Court without serving the Respondents, obtained Judgment and began executing, and upon which the Respondents applied to set aside the Judgment. She stated that the Applicant was served with the Application for hearing but failed to attend upon which a fresh date was fixed, but again, the Applicant failed to attend and never filed any response. She deponed that it is under these circumstances that the Court set the matter for Ruling and then allowed the Application, thus setting aside the Judgment. She deponed further that no good reason has been given to warrant the Applicant to file an Appeal after 1 year, and that the Applicant should have sought a Review or appealed immediately. Counsel then delved into what appeared to be arguments on matters that should actually be left for argument at the substantive Appeal, if leave to appeal is granted. I will not therefore recount these portions of the Affidavit. 6. The Applicant then filed the Further Affidavit sworn by herself on 24/03/2025 in response to the Replying Affidavit. I will however ignore this Further Affidavit in its entirety as it goes even further than the irregularities I noted in the Respondent’s Replying Affidavit. The Further Affidavit argues the merits of the substantive case before the Small Claims Court and even worse, introduces totally new matters not raised or touched on in the Supporting Affidavit. 7. A reading of the above Further Affidavit and of many others that I have been seeing lately, clears any doubts that might still have been lingering in my mind that many Advocates still experience serious challenges in differentiating and understanding what needs to be contained in a Supplementary or Further Affidavit filed in response to a Replying Affidavit, and also what should also be left purely for written Submissions, and not to be “forced” into Affidavits. I hope Advocates will take time to learn these basic aspects of litigation. 8. Upon perusing the pleadings filed herein and hearing Counsel, I formed the opinion that I did not require them to file any written Submissions. I therefore directed that I would determine the matter based on the respective Affidavits highlighted above. This was also meant to save the Court from being again bombarded with repetition of arguments on matters that are irrelevant at this stage, as the contents of the respective Affidavits above have demonstrated. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13868/eng@2025-08-01 2

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Determination 9. It is clear that the issue that arises for determination herein is “whether the Applicant should be granted leave to file the appeal out of time to challenge the Ruling of the Small Claims Court”. 10. On the matter of timelines for filing Appeals to the High Court, Section 79G of the Civil Procedure Act provides as follows: “ Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order. Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had a good and sufficient cause for not filing the appeal in time.” [Emphasis added].” 11. In the case of Edith Gichungu Koine Vs Stephen Njagi Thoithi [2014] eKLR, the Court of Appeal guided that in an application for extension of time, the Court ought to take into account several factors as observed by Odek JJA as follows: “ Nevertheless, it ought to be guided by consideration of factors stated in many previous decisions of this court including, but no limited to, the period of delay, the reasons for the delay, the degree of prejudice to Respondent if the application is granted, and whether the matter raises issues of public importance, amongst others.” 12. It is therefore the position that where the delay by a litigant is well explained and the matter sought to be appealed out of time raises triable issues or arguable points, the Court will be reluctant to punish such litigant by declining to grant him enlargement of time. On this point, I am guided by the decision in Kamlesh Mansukhalal Damki Patni Vs Director of Public Prosecution & 3 Others [2015] eKLR, in which the Court of Appeal, in declining to strike out a Notice of Appeal filed one day out of time, stated as follows: “ 40. It must be realized that courts exist for the purpose of dispensing justice. Judicial officers derive their judicial power from the people, or as we are wont to say in Kenya, from Wanjiku, by dint of Article 159 (1) of the Constitution which succinctly states that “judicial authority is derived from the people and vests in, and shall be exercised by the courts and tribunals established by or under this Constitution.” Judicial officers are also state officers, and consequently, are enjoined by Article 10 of the Constitution to adhere to national values and principles of governance which require them whenever applying or interpreting the Constitution or interpreting the law to ensure, inter alia, that the rule of law, human dignity and human rights and equity, are upheld. For these reasons, decisions of the courts must be redolent of fairness and reflect the best interests of the people whom the law is intended to serve. Such decisions may involve only parties inter se (and hence only parties’ interests) and while others may transcend the interest of the litigants and encompass public interest. In all these decisions, it is incumbent upon the court in exercising its judicial authority to ensure dispensation of justice https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13868/eng@2025-08-01 3

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as this is what lives up to the constitutional expectation and enhances public confidence in the system of justice.” 13. Similarly, in the case of Charles Karanja Kiiru – versus- Charles Githinji Muigwa [2017] eKLR, the Court of Appeal upheld the following statements made by the trial Judge (P.J. Otieno J) in the suit giving rise to the Appeal before it: “ It suffices to comment that a court of law should be hesitant at closing the door to the corridors of justice prior to a litigant being heard on his complaint …..” 14. The question now is whether the delay herein has been well explained by the Applicant. 15. In this matter, the Ruling sought to be appealed against was rendered in March 2024 and the instant Application was filed in March 2025, thus 1 year later. Although the Applicant states that she had initially approached this Court with an Application that however turned out to be defective, namely Eldoret High Court Misc. Application No. E114 of 2024, she does not disclose when that Application was determined or withdrawn or abandoned, as the case may be. This Court is therefore left in a position in which it is unable to determine whether the Applicant moved fast enough to file the instant Application, after determination or withdrawal or abandonment of the earlier Application. In light of this omission, I find that the Applicant has woefully failed in discharging the above duty. 16. In respect to the issue of delay, the Supreme Court, in the case of Andrew Kiplagat Chemaringo vs. Paul Kipkorir Kibet [2018] eKLR, , guided as follows: “ the law does not set out any minimum or maximum period of delay. All it states is that any delay should be satisfactorily explained. A plausible and satisfactory explanation for delay is the key that unlocks the court’s flow of discretionary favour. There has to be valid and clear reasons, upon which discretion can be favourably exercisable.” 17. It is therefore clear that grant of leave to file an appeal out of time is a discretionary power and not a matter of course. The Applicant is therefore required to satisfactorily demonstrate that there was good cause why the Appeal was not filed in time. Such good cause must be demonstrated and established by the Applicant himself and it is not the Court’s initiative to try to infer or imply the same. It is entirely the Applicant’s duty to satisfy the Court. 18. As aforesaid, in this case, the Applicant has failed in discharging the above duty and the Application cannot therefore succeed. I accordingly dismiss it in its entirety. 19. Before I pen off however, and although the Application already stands dismissed, I may also touch on the issue of matters that are appealable under Section 38(1) and (2) of the Small Claims Court Act No. 2 of 2016. Although this issue has not been canvassed or raised by either of the parties, it may have a bearing on whether the Applicant even has an arguable Appeal in the first place. Since, however, the parties did not canvass the issue, I will simply make general comments and my observations on the draft Memorandum of Appeal. 20. Section 38(1) and (2) are premised as follows: “ 38. Appeals (1) A person aggrieved by the decision or an order Appeals. of the Court may appeal against that decision or order to the High Court on matters of law. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13868/eng@2025-08-01 4

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(2) An appeal from any decision or order referred to in subsection (1) shall be final.” 21. What the above means is basically that under Section 38 of the Small Claims Court Act, 2016, the High Court, while handling an appeal from the Small Claims Court is not permitted to substitute that Court’s decision with its own conclusions based on its own analysis and appreciation of the facts, unless the findings are so perverse that no reasonable tribunal would have arrived at them. 22. In respect to drafting of Memoranda of Appeals in Appeals arising from the Small Claims Court, D. Kizito Magare J, in the case of Mwangi v Kihiu (Civil Appeal 16 of 2023) [2023] KEHC 18643 (KLR) (28 April 2023) (Judgment), stated as follows: “ Even on the normal legal lingua, a point of law must clearly arise out of the pleadings. In case of appeal, it should arise out of the memorandum of appeal vis-à-vis the pleadings in the court below …………….” 23. Perusing the draft Memorandum of Appeal presented by the Applicant herein, it is clear that in the intended Appeal, the Applicant will be asking the Court to determine whether or not the Respondent was served with Summons to enter Appearance in the suit before the Small Claims Court. Since that Court made the finding that the Respondent was never served, it means that the Applicant intends to ask this Court, on appeal, to make a contrary finding that service was indeed effected. Would that not mean that the appellate Court would be required to make a determination on matters of fact? Would such an exercise really meet the threshold set in Section 38 above? In light of this, I have serious reservations on whether the intended Appeal will surmount the hurdle placed by Section 38. 24. Further, a reading of Section 32 of the Small Claims Act expressly stipulates that the Small Claims Court shall not be bound wholly by Rules of evidence. The grievances being raised by the Applicant may also have to contend with this second hurdle. The Section is premised as follows: “ 32. 25. Exclusion of strict Rules of evidence 1. The Court shall not be bound wholly by the Rules of evidence. 2. Without prejudice to the generality of subsection (1), the Court may admit as evidence in any proceedings before it, any oral or written testimony, record or other material that the Court considers credible or trustworthy even though the testimony, record or other material is not admissible as evidence in any other Court under the law of evidence.” The nature of the Small Claims Court is such that it is intended to ensure that “small claims” are dealt with efficiently without the burden of strict rules and at a minimum cost to the parties. In making the Rules, the Chief Justice is guided by the Section 3 of the Act which provides as follows: “ Section 3 - Guiding principles (1) In exercise of its jurisdiction under this Act, the Court shall be guided by the principles of judicial authority prescribed under Article 159(2) of the Constitution. (2) ............................................................. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13868/eng@2025-08-01 5

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(3) Without prejudice to the generality of subsection (1) the Court shall adopt such procedures as the Court deems appropriate to ensure— (a) the timely disposal of all proceedings before the Court using the least expensive method; .........................................................; (d) simplicity of procedure.” 26. It must therefore be always recalled that the proceedings before the Small Claims Court are expected to adhere to the principle of “timely disposal, use of the “least expensive method” and “simplicity of procedure” Interlocutory Appeals against Rulings of the Smal Courts on preliminary matters should therefore be discouraged as they have the potential of interfering with and stalling the Small Claims Court processes, contrary to the spirit of the Small Claims Court Act, its aspirations, intentions and purpose. The Act was enacted to address a genuine concern and it is the duty of the Courts to ensure that focus is not lost on such concern and that the mischief that the Act sought to cure remains within sight. 27. I associate myself fully with the sentiments of E.K. Ogola J made in the case of Mombasa Law Society v Attorney General & another [2021] eKLR in which he stated that: “ one of the objectives of the Small Claims Court Act is to see that small claims are disposed of using the least expensive method. This is probably because the small claims, as the name suggests, are claims whose subject is of a much lower value. Most likely for that reason, the law makers felt that the cost of Appeal to the High Court then to the Court of Appeal would be much higher than the small claim.” 28. For the said reasons, the High Court has to be careful and firm in admitting appeals from the Small Claims Court. The High Court is under obligation to sieve through such appeals and ensure that only those that are compliant and well-deserving see the light of day. The High Court must therefore interrogate Appeals from the Small Claims Court and admit only those that raise matters of law only, not facts. 29. With the foregoing in mind, even if I had found that the Applicant is not guilty of inordinate and unexplained delay in filing this instant Application, it is still highly likely that I would still have dismissed the Application on the above further grounds, namely, that the intended Appeal appears to be raising matters of fact, rather than of law, and that the Application also runs contrary to the spirit, aspirations, intentions and purpose of the Small Claims Court Act, which is basically to provide a simple judicial mechanism to achieve speedy resolution in “small claims” disputes. Final Orders 30. In the circumstances, the Application dated 27/02/2025, and by extension, this entire action is dismissed with costs to the Respondents. DELIVERED, DATED AND SIGNED AT ELDORET THIS 1ST DAY OF AUGUST 2025 ………………….. WANANDA J. R. ANURO JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13868/eng@2025-08-01 6

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Delivered: N/A for the Applicant N/A for the Respondent Court Assistant: Brian Kimathi https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13868/eng@2025-08-01 7

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